Category Archives: Handbook

A turbulent August

The summer is usually a quiet time; not so this year. There has been much going on, both in civil and crime, so here is a round up of recent events.

Two more JR losses

The MoJ and LAA have lost two more judicial reviews, both lost because of deficiencies in policy making and in the fairness of the LAA’s approach – making three in recent months (following the housing court tender) where the High Court has been seriously critical of MoJ / LAA failings.

In The Law Society, R (On the Application Of) v The Lord Chancellor [2018] EWHC 2094 (Admin)Leggatt LJ and Carr J quashed the recent changes to LGFS. Although critical of the Law Society’s conduct of the litigation, their strongest words were saved for the conduct of the MoJ consultation, which was found to be not open and transparent, in particular because the underlying analysis was not only withheld but concealed. The analysis itself was statistically flawed and could not be relied on. And, in respect of the Lord Chancellor’s argument that these failings did not prejudice the fairness of the consultation, the court said that “It is difficult to express in language of appropriate moderation why we consider these arguments without merit”.

Ames, R (On the Application Of) v The Lord Chancellor [2018] EWHC 2250 (Admin) is a case about the quantum of counsels’ fees in a criminal VHCC. As part of the negotiations, the LAA relied on figures produced by its internal “calculator”, but refused to disclose the calculator or any other policy or guidance it used for setting the amounts of reasonable work and the fees payable. The court pointed out that for all other fee schemes, the rates of pay and the basis of calculating fees were published in regulations. It found that the failure to disclose it was irrational and in breach of a duty of transparency and clarity to those whose fees were to be determined by it, a failing compounded by a further failure to engage with the arguments counsel seeking payment made, and mistakes in the LAA’s own calculations. The court directed the calculator and associated guidance to be disclosed.

New civil contracts start 1 September – or do they?

Organisations awarded civil contracts from 1 September 2018 were, in many cases, left in considerable doubt about whether they’d be able to continue as the LAA failed to upload contracts for signature for some successful bidders. Unless the contract has been uploaded by the LAA, and then accepted and executed, you do not have a valid 2018 contract and will not be paid for work done from 1 September 2018 (except under the remainder work provisions of the old contract).

There was no public announcement of what organisations in this position should do in the run up to the start date. LAPG was in constant contact with the LAA and kept its members up to date as best as it could (any legal aid lawyers not members of LAPG really should be). But it was not until late on Friday evening, just before the midnight end of the old contract, that the LAA announced that it was creating a special seven day emergency contract. It has issued further guidance on Monday – if your organisation is affected, make sure you check Bravo regularly and have uploaded everything the LAA has asked for. The LAA has said that organisations operating under the emergency contract will not be able to apply for certificates through CCMS, so you should either wait until your full contract is confirmed, or – if the work is urgent – call the LAA on 0300 200 2020.

New civil guidance

The LAA has begun the process of updating its guidance to take account of the 2018 contract – so far the costs assessment guidance and the escape cases handbook have been updated.

AGFS consultation

As part of its deal with Bar that led to the calling off of action earlier this year, the MoJ promised to re-work the AGFS scheme and invest a further £15million into it. The MoJ opened a consultation into the detail of how this would be done – it closes on 28 September.

The new LAG Legal Aid Handbook 2018/19 is out now – featuring full coverage of the civil and criminal schemes, fully revised and updated and including the 2018 civil contract. This edition includes brand new chapters on CCMS and community care, specialist chapters on housing, family, mental health, immigration and crime work, and greatly expanded coverage of civil costs. Written by a team of legal aid experts and edited by Vicky Ling, Simon Pugh and Sue James, it’s the one book no legal aid lawyer can afford to be without. Order your copy here now.

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New LAG Legal Aid Handbook

We’re delighted that the new Handbook, 2018-19 edition, will be published at the end of this month.The new edition is fully revised and updated and packed full of useful advice, hints and tips and guidance. It’s the only fully comprehensive guide to the whole legal aid scheme, described by some readers as the ‘bible on legal aid’.

This edition welcomes a new general editor joining Vicky and Simon, Sue James. Sue needs no introduction to legal aid lawyers as a leading housing lawyer and the recipient of a LALY lifetime achievement award.

Anthony Edwards returns to edit the crime sections, and his vast experience and knowledge makes that section indispensable for criminal lawyers.

Returning contributors Steve Hynes and Richard Charlton have updated their chapters on policy and mental health. For this edition we have brand new content of interest to all civil legal aid lawyers from a range of expert practitioners:

  • Leading costs lawyer and chair of the ACL legal aid group Paul Seddon has revised and greatly extended the civil costs chapter
  • Simpson Millar solicitor and LALY nominee Silvia Nicolaou Garcia has contributed a brand new chapter on community care
  • Consultant and IT expert Jane Pritchard has written a detailed guide to using CCMS

Bigger and better than ever and fully up to date including the 2018 contracts, the Handbook is the one book no legal aid lawyer can afford to be without. Pre-order your copy now from the LAG Bookshop

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Changes to legal aid for victims of domestic abuse in force on Monday

Funding for private family law cases is generally only available where the applicant for legal aid can show that they are a victim of domestic abuse, or where they can show that the aim of the proceedings is to protect a child at risk of abuse from a third party (such applications are in scope because of Paras 12 and 13 of Part 1 Schedule 1 of LASPO; see also Chapter 6 of the Handbook). Until the successful challenge to the original regulations by Rights of Women, there was a requirement that the evidence in support of the application had to be no more than 2 years old. Following the litigation, that was extended to 5 years.

From Monday 8 January 2018, the five year limit is removed. The existing evidence requirements are also removed, and replaced with a new Schedule 1 of the Procedure Regulations. When the Civil Legal Aid (Procedure) (Amendment) (No 2) Regulations 2017 come into force, acceptable evidence (for civil legal services to be provided to an adult (A) in relation to a matter arising out of a family relationship between A and another individual (B)) will include:

Domestic abuse – para 12 Part 1 Schedule 1 LASPO cases

  • Evidence that B has been arrested for a relevant domestic violence offence.
  • A relevant police caution for a domestic violence offence.
  • Evidence of relevant criminal proceedings for a domestic violence offence which have not concluded.
  • A relevant conviction for a domestic violence offence.
  • Evidence of a court order binding over B in connection with a domestic violence offence.
  • A domestic violence protection notice issued under section 24 of the Crime and Security Act 2010 against B.
  • A relevant protective injunction.
  • An undertaking given in England and Wales under section 46 or 63E of the Family Law Act 1996 (or given in Scotland or Northern Ireland in place of a protective injunction) by B provided that a cross-undertaking relating to domestic violence was not given by A.
  • A copy of a finding of fact, made in proceedings in the United Kingdom, that there has been domestic violence by B.
  • An expert report produced as evidence in proceedings in the United Kingdom for the benefit of a court or tribunal confirming that a person with whom B is or was in a family relationship, was assessed as being, or at risk of being, a victim of domestic violence by B.
  • A letter or report from an appropriate health professional confirming that that professional, or another appropriate health professional—
    • (a)has examined A in person; and
    • (b)in the reasonable professional judgement of the author or the examining appropriate health professional A has, or has had, injuries or a condition consistent with being a victim of domestic violence.
  • A letter or report from—
    • (a) the appropriate health professional who made the referral described below;
    • (b) an appropriate health professional who has access to the medical records of A; or
    • (c) the person to whom the referral described below was made;
    • confirming that there was a referral by an appropriate health professional of A to a person who provides specialist support or assistance for victims of, or those at risk of, domestic violence.
  • A letter from any person who is a member of a multi-agency risk assessment conference (or other suitable local safeguarding forum) confirming that A, or a person with whom A is in a family relationship, is or has been at risk of harm from domestic violence by B.
  • A letter from an independent domestic violence advisor confirming that they are providing support to A.
  • A letter from an independent sexual violence advisor confirming that they are providing support to A relating to sexual violence by B.
  • A letter from an officer employed by a local authority or housing association (or their equivalent in Scotland or Northern Ireland) for the purpose of supporting tenants containing—
    • (a) a statement to the effect that, in their reasonable professional judgment, a person with whom B is or has been in a family relationship is, or is at risk of being, a victim of domestic violence by B;
    • (b) a description of the specific matters relied upon to support that judgment; and
    • (c) a description of the support they provided to the victim of domestic violence or the person at risk of domestic violence by B.
  • A letter from an organisation providing domestic violence support services. 
    • The letter must confirm that it—
      • (a) is situated in England and Wales;
      • (b) has been operating for an uninterrupted period of six months or more; and
      • (c) provided A with support in relation to A’s needs as a victim, or person at risk, of domestic violence.
    • (3) The letter must contain—
      • (a) a statement to the effect that, in the reasonable professional judgement of the author of the letter, A is, or is at risk of being, a victim of domestic violence;
      • (b) a description of the specific matters relied upon to support that judgement;
      • (c) a description of the support provided to A; and
      • (d) a statement of the reasons why A needed that support.
  • A letter or report from an organisation providing domestic violence support services in the United Kingdom confirming—
    • (a) that a person with whom B is or was in a family relationship was refused admission to a refuge;
    • (b) the date on which they were refused admission to the refuge; and
    • (c) they sought admission to the refuge because of allegations of domestic violence by B.
  • A letter from a public authority confirming that a person with whom B is or was in a family relationship, was assessed as being, or at risk of being, a victim of domestic violence by B (or a copy of that assessment).
  • A letter from the Secretary of State for the Home Department confirming that A has been granted leave to remain in the United Kingdom under paragraph 289B of the Immigration Rules.
  • Evidence which the Director is satisfied demonstrates that A has been, or is at risk of being, the victim of domestic violence by B in the form of abuse which relates to financial matters.  

Protection of children – para 13 Part 1 Schedule 1 LASPO cases

  • Evidence that B has been arrested for a child abuse offence.
  • A relevant police caution for a child abuse offence.
  • Evidence of relevant criminal proceedings for a child abuse offence which have not concluded.
  • A relevant conviction for a child abuse offence.
  • A relevant protective injunction.
  • A copy of a finding of fact made in proceedings in the United Kingdom of abuse of a child by B.
  • A letter from a social services department in England and Wales (or its equivalent in Scotland or Northern Ireland) confirming that the child was assessed as being, or at risk of being, a victim of child abuse by B (or a copy of that assessment).
  • A letter from a social services department in England and Wales (or its equivalent in Scotland or Northern Ireland) confirming that a child protection plan was put in place to protect the child from abuse or a risk of abuse by B (or a copy of that plan).
  • An application for an injunction described in paragraph 5 of this Schedule made with an application for a prohibited steps order against B under section 8 of the Children Act 1989 which has not, at the date of the application for civil legal services, been decided by the court.

Withdrawal of legal aid

The rules on when the Director can withdraw a grant of legal aid have also been revised. The new rule (a revised Reg 42(1)(k) of the Procedure Regulations) says legal aid may be withdrawn where the evidence relied on was:

  • a conviction for an offence and that conviction has subsequently been quashed; 
  • evidence of ongoing criminal proceedings and those proceedings have subsequently been concluded without a conviction;
  • evidence described in paragraph 7 of Schedule 1 or paragraph 5 of Schedule 2 where—
    • (a) the order was obtained without notice to the respondent; and
    • (b) that order has subsequently been set aside by the court;
  • evidence described in paragraph 7 of Schedule 1 where the application for a domestic violence protection order has been made under section 27 of the Crime and Security Act 2010(6) but has been unsuccessful on account of the conditions set out in section 28 of that Act not having been satisfied;
  • evidence described in paragraph 1 of Schedule 1 where no charge is brought for the domestic violence offence (within the meaning of Schedule 1) and the Director is satisfied that it is unlikely that such a charge will be brought;
  • evidence described in paragraphs 16 to 18 of Schedule 1 and a public authority has confirmed in writing that it is satisfied—
    • (a) there has not been domestic violence between A and B; or
    • (b) A was not at any time at risk of being the victim of domestic violence
  • evidence described in paragraph 1 of Schedule 2 where no charge is brought for the child abuse offence (within the meaning of Schedule 2) and the Director is satisfied that it is unlikely that such a charge will be brought;
  • evidence of an application described in paragraph 9 of Schedule 2 and that application has subsequently been withdrawn or refused,

unless there is some other form of evidence which would also justify a grant of legal aid.

Transitional provisions

The new evidence requirements are not backdated. They will only apply to Controlled work applications signed from Monday 8 January onward. Licensed Work applications signed from Monday 8 January will be made under the new rules, but those signed before that date and received by the LAA before 5pm on 15 January will be treated under the old rules. Grants of emergency representation made before 8 January will be treated under the old rules even if the 5 day notification is received by the LAA after 8 January.

Comment

This is a helpful development. Although the requirement to obtain evidence is still in place – with all the practical difficulties that causes – the widening of the range and age of what constitutes acceptable evidence should help make legal aid available more widely than before.

The manner of the change is also a helpful development. We have been saying for some years now – in the Handbook, on this site and elsewhere – that the current system of amending the scheme is not fit for purpose. Post-LASPO, most of the significant rules are no longer in LAA documents, but in primary and secondary legislation. Amendments to the rules are made via amendments to the legislation. Neither the MoJ nor the LAA make consolidated versions of the regulations available, and nor does the legislation.gov.uk website. That means – unless you have the sort of subscription legal research tool that is unaffordable to most legal aid lawyers – the only way to work out the current rules is to cross-reference the original and amending regulations. The civil legal aid merits tests, for example, are not publicly available – unless you read four sets of regulations side by side, manually amending them as you go (or unless you buy the Handbook!). The MoJ and LAA should urgently make available – and keep up to date – a single consolidated version of all the key legal aid regulations. It cannot be right that the fundamental basis of the scheme is obscure to practitioners – and impenetrable to the public using it. It hasn’t yet gone that far, but removing the previous much amended sections of the Procedure Regulations and replacing them with a single up to date Schedule is a welcome step in the right direction. In the meantime, links to all the regulations and other resources can be found on our Resources page.

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New Handbook published

The new edition of the Handbook has now been published and pre-order copies are being dispatched. You can order your copy from LAG here.

This book is an invaluable companion and essential reading for all legal aid practitioners, from caseworkers to senior partners. The authors have expertly pulled together information that is not currently available in one place providing the only single volume guide to the criminal and civil legal aid scheme.

‘… admirably clear on some very tricky points. There should be at least one copy in every office where legal aid work is carried out.’ Carol Storer, director, LAPG.

‘I wish I could say “this book is never off my desk” but the truth is my copy of LAG Legal Aid Handbook always appears to be on someone else’s … Essential reading for all practitioners seeking to provide a first class service to clients in a post-LASPO world.’  Phil Walsh Partner/Practice Manager, Miles & Partners LLP.

The  LAG legal aid handbook 2017/18 gives practical, step by step guidance on conducting cases, getting paid, advocacy, financial and contract management, performance monitoring and quality standards and an overview of recent policy developments. There are separate chapters on all the major areas of law covered by legal aid and sections devoted to litigators and advisers, advocates and managers.

This edition has been updated to include:

•  full coverage of the new 2017 crime contract

•  latest changes and updates to the civil scheme

•  discussion of current case law and hot topics in legal aid practice

•  hints, tips and practical advice from how to manage a contract to navigating CCMS

•  specialist chapters on billing, crime, public family law, private family law, housing, mental health, immigration and exceptional funding

•  a dedicated section for advocates

•  guidance on managing legal aid work and tendering for contracts

•  a full round up of the latest policy developments

The only comprehensive guide to the whole legal aid scheme, the new edition features chapters written by expert contributors Anthony Edwards, Richard Charlton, Steve Hynes, Solange Valdez-Symonds and Katie Brown. The LAG legal aid handbook 2017/18 is packed full of case studies, checklists and practical tips. It provides clear and easy to follow guidance on the ever more complex legal aid system and is essential reading for everyone involved in legal aid from new caseworkers to experienced lawyers and managers.

 

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The new Handbook – coming very soon!

The brand new edition of the LAG Legal Aid Handbook will be published at the beginning of April. Fully revised and updated, this edition features

  • full coverage of the new 2017 crime contract
  • latest changes and updates to the civil scheme
  • discussion of current case law and hot topics in legal aid practice
  • hints, tips and practical advice from how to manage a contract to navigating CCMS
  • specialist chapters on billing, crime, public family law, private family law, housing, mental health, immigration and exceptional funding
  • a dedicated section for advocates
  • guidance on managing legal aid work and tendering for contracts
  • a full round up of the latest policy developments

The Handbook is edited by Vicky Ling and Simon Pugh, and features contributions from a range of subject experts including Anthony Edwards, Steve Hynes, Richard Charlton, Solange Valdez-Symonds and Katie Brown.

You can pre-order your copy now by e-mailing: direct.orders@marston.co.uk or phoning: 01235 465577, or by clicking here.

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Upcoming training – with free books!

Our publisher LAG is running training courses by two of the Handbook’s editors as part of its autumn training programme.

Vicky Ling is delivering “Managing Civil Legal Aid Contracts” in London on 15 September. Participants get a free copy of the Handbook. More details here.

Anthony Edwards is embarking on a national tour speaking on criminal costs. Participants get a free copy of our sister publication, Anthony’s book (with Colin Beaumont) Criminal Costs. More details, including dates and venues, here.

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Summer sale – 20% off the Handbook

Our publisher LAG is running a summer sale. For August only, it is offering 20% off the Handbook and up to 30% off a range of its other excellent titles. Click here for more details of the offer.

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